Against Autonomy: Justifying Coercive Paternalism.

• Author: Alfieri, Anthony V.
• Position: Book review

AGAINST AUTONOMY: JUSTIFYING COERCIVE PATERNALISM. By Sarah Conly. New York: Cambridge University Press. 2013. Pp. viii, 194. Cloth, $95; paper, $32.99.

INTRODUCTION

Low-income communities of color in Miami and in cities across the nation both share aspirations of equal justice and democratic participation and suffer the burdens of legal underrepresentation and political disenfranchisement. Such burdens become crippling when, as in Miami, local legal aid offices, public interest organizations, and bar associations lack the resources to provide meaningful private access to justice or to muster significant public engagement in the political process. (1) These burdens become especially crippling when, again as in Miami, local and state governments adopt policies that engender inner-city neglect, economic displacement, and racial exclusion. In these circumstances, volunteer lawyers from private sector law firms sometimes constitute the last best hope for individual residents and neighborhood groups in need of legal and political representation. (2)

For many volunteer lawyers, the call of pro bono service comes from individual clients. For others, the call emanates from broader causes. (3) And for some, the call rises from a sense of place and history, from the experience--real or imagined--of community itself. (4) Whatever its source, for most, the call of pro bono service evokes a strong, discretionary sense of lawyer paternalism toward clients, their causes, and their communities. (5) By lawyer paternalism, I mean interventions that not only interfere with a client's "autonomous choices" but also disregard or override a client's value "commitments"--those commitments that animate the public and private dimensions of a client's life, giving meaning and imparting dignity. (6)

This Review considers the call of community representation for pro bono lawyers and their public interest cohorts, (7) as well as the moral-ethical issues of paternalism they may encounter. (8) Because a full account of such nettlesome issues is beyond the scope of this inquiry, the Review confines its analysis to three specific types of paternalistic lawyer intervention: coercive settlement counseling tactics, termination of representation threats, and censorious public disclosures. Against this backdrop, the Review explores Sarah Conly's provocative new book, Against Autonomy: Justifying Coercive Paternalism, (9) in search of the best moral-ethical justifications for a lawyer's discretionary, paternalistic use of coercive counseling, termination, and disclosure tactics. (10) By borrowing Conly's defense of government-sponsored policies of paternalistic regulation and engrafting its core libertarian and coercive theories on the lawyering process, we can illuminate the moral--ethical complexities and risks of community-based lawyering that pro bono attorneys face. Extending Conly's strong policy defense and its powerful moral-ethical justifications in this way joins and advances contemporary debates over improving access to legal services (11) and expanding civic participation in law and society. (12) The Review proceeds in three Parts. Part I sketches a framework for the study of community representation in the context of environmental justice advocacy. Part II explores Conly's arguments for greater state-instituted paternalism. Part III then considers the implications of Conly's arguments for the use of coercive lawyer tactics.

1. COMMUNITY ENVIRONMENTAL JUSTICE: A CASE STUDY

   "Sometimes the trees would catch fire and we'd have to put them out because the fire department wouldn't come." (13)

   Studies of community-based environmental justice campaigns highlight the elastic legal-political nature of civil rights and poverty law advocacy. Community representation combines multiple forms of legal--political advocacy on behalf of a geographically situated and readily identifiable group of individuals or entities linked by common cultural, economic, and social interests. (14) In the context of inner-city Miami and other impoverished urban areas, this group typically comprises a range of prospective clients, including homeowners and tenants, parents and children within multigenerational families, low-wage workers and small-business owners, nonprofit groups, and clergy and church congregations. Advocacy on behalf of community-based clients and groups entails ongoing interdisciplinary collaborations and shifting participatory roles. (15) Constructed from the historical strands of the civil rights movement, the practice of community economic development, and the pedagogy of clinical legal education, (16) community representation shares "affinities with both cause and client-centered lawyering," building on a body of academic work and a tradition of grassroots advocacy based on conceptions of community power and collaborative client-lawyer relations. (17)

   Both pro bono and public interest lawyers face a familiar battery of moral-ethical issues in representing inner-city communities and their constituent groups. Rehearsed in the literature of multiple-client representation, (18) especially concerning class action (19) and aggregate litigation, (20) the issues include the formation of the client-lawyer relationship, (21) the objectives and scope of representation, (22) communication (23) and confidentiality, (24) conflicts of interest, (25) organizational counseling, (26) duties to prospective clients, (27) the lawyer's advisory role, (28) and the termination of representation. (29)

   Community representation in civil rights and poverty law cases routinely implicates these sorts of moral-ethical issues, even when the interests of lawyers, lay activists, and clients converge within legal-political advocacy campaigns, (30) particularly in the expansive setting of environmental justice controversies. (31) Frequently, pro bono and public interest lawyers step into this larger setting from a spirit of collective obligation rather than a sense of individual or institutional loyalty. Accordingly, their motivations (e.g., access to justice and democratic participation) may be more civic-minded and their goals (e.g., environmental safety and public health) more universal in scale.

   Consider, for example, the commitment of Florida pro bono lawyers to the low-income, historically segregated Jim Crow community of Coconut Grove Village West ("the West Grove") in Miami. (32) In 1925, the city erected a trash incinerator, called Old Smokey, in the West Grove beside residential homes and public schools. (33) For forty-five years until 1970, Old Smokey emitted carcinogenic chemicals (e.g., arsenic, benzo(a)pyrene, cadmium, and lead) and discharged toxic waste (e.g., ash). Long-term exposure to toxic emissions and waste dump sites contributed to the contamination of soil and groundwater in the West Grove and in public parks in adjoining Coconut Grove and elsewhere. (34)

   Summoned to the West Grove for individual aid and institutional assistance, pro bono volunteer lawyers have their own motivations and goals that consciously and unconsciously shape the formation of client--lawyer relationships, inform the objectives and scope of representation, and dictate the means of representation. The formation, scope, and means of pro bono representation in local environmental justice controversies confront pro bono lawyers with a bundle of hard choices. Consider three such choices (35) : first, the choice of counseling a client to reject a settlement offer for individual monetary relief in order to negotiate a community-wide benefits agreement calling for the comprehensive assessment and cleanup of contaminated soil and groundwater; (36) second, the choice of discontinuing or terminating the representation of a client because she opts for an individual monetary settlement prior to the

   negotiation of a community benefits agreement; (37) and third, the choice of publicly disclosing a client's independent monetary settlement (i.e., a party-to-party settlement negotiated without the lawyer's knowledge (38)), even though such a revelation might result in the public ostracism or shunning of the client.

   Well hewn by civil rights and poverty law practitioners, these sometimes controversial paternalistic interventions are neither new nor surprising. Read plainly, the conventions of lawyer counseling permit independent, candid advice regarding the moral, economic, social, and political considerations relevant to a client's situation. (39) Similarly, the conventions of the client-lawyer relationship permit a lawyer to withdraw from representation if the client insists on taking action with which the lawyer harbors a fundamental disagreement. (40) Moreover, the same conventions permit the lawyer to reveal information that is either unrelated to the representation of a client or necessary to carry out the representation. (41) Nonetheless, the hard choices molded by the conventions of practice import an extensive body of cautionary commentary from the fields of legal ethics and professional regulation. (42) That commentary challenges the propriety of a lawyer's paternalistic use of coercive settlement counseling tactics, termination of representation threats, and censorious public disclosures. To test the propriety of such lawyer interventions and to salvage their tactical use in environmental justice campaigns, let us turn to Conly's analysis of state-sponsored paternalism.

2. PATERNALISTIC INTERVENTIONS

   "What we need to do is to help one another avoid mistakes so that we may all end up where we want to be." (p. 2)

   Conly's defense of paternalistic interventions clashes with some of the fundamental tenets of classical liberalism. In particular, her defense departs from the normative centrality of individual autonomy, freedom of choice, and liberty of decisionmaking. Intrigued by significant developments in the fields of psychology and behavioral economics, she moves beyond accepted...